BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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An appeal against this decision was dismissed in the High Court:
CIV 2010-404-004893  PDF1.69 MB

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 Complaint under section 8(1A) and 8(1B)(b)(i) of the Broadcasting Act 1989
Until Proven Innocent – feature-length drama based on the story of David Dougherty who was wrongly convicted of abducting and raping his 11-year-old neighbour – included scenes showing David Dougherty with a fellow prisoner who was later convicted of the offence – graphic at end of programme stated that Nicholas Reekie was convicted – allegedly in breach of privacy, controversial issues, accuracy, fairness and responsible programming

Findings
Standard 3 (privacy) – Mr Reekie’s convictions and imprisonment in 1993 not public facts that have become private – not upheld – remainder of privacy complaint already determined and decision upheld in the High Court – decline to determine under section 11(b) of the Broadcasting Act 1989

Standard 7 (discrimination and denigration) – Mr Reekie not a section of the community to which the standard applies – not upheld

Standards 4 (controversial issues – viewpoints), 5 (accuracy), 6 (fairness) and 8 (responsible programming) – already determined in previous complaint and decision upheld in the High Court – decline to determine under section 11(b) of the Broadcasting Act 1989

This headnote does not form part of the decision.

Broadcast

[1]   Until Proven Innocent was a feature-length drama broadcast during TV One’s Sunday Theatre timeslot at 8.30pm on 8 February 2009. The programme was repeated on TV One at 8.30pm on Sunday 9 August 2009.

[2]   An on-screen caption at the beginning of the programme stated that it was “based on the true story of David Dougherty”, who was acquitted of a crime for which he was wrongfully convicted in 1993 and served three years in prison. The story focused on Mr Dougherty’s lawyer, a journalist and a scientist as they worked to have him freed.

[3]   During the programme, three scenes portrayed encounters between Mr Dougherty and a man named Nicholas Reekie who was also in prison. In the first, Mr Reekie introduced himself to Mr Dougherty while they were out working under supervision, and they discussed their innocence. In another scene, the two men were shown singing a hymn together in a chapel at the prison. Later, when Mr Dougherty found out he was to be released, he was lying on the ground in the rain and Mr Reekie pulled him up and indicated that he was pleased that David Dougherty was getting out of prison.

[4]   At the end of the programme, on-screen captions summarised the outcomes for each of the people involved in the story. The captions stated that David Dougherty had been acquitted in 1997 after serving three years in prison, and that his lawyer, the journalist and the scientist continued to fight for Mr Dougherty until he received an apology and compensation from the government. The final caption stated:

In 2003, Nicholas Reekie was convicted of the abduction and rape of “Kate”.

His DNA positively matched the semen sample taken from her pyjamas in 1992.

Between the time of David’s conviction and his own, Nicholas Reekie had abducted and raped two other women.

He was caught after attempting to abduct a third.¹

Background

[5]   Nicholas Reekie made a formal complaint about the 8 February broadcast to Television New Zealand Ltd, the broadcaster, alleging that the programme breached standards relating to privacy, balance, accuracy, fairness and programme information. Mr Reekie referred his complaint to the Authority. It declined to uphold any part of the complaint and its decision was upheld on appeal to the High Court.²

Complaint

[6]   Mr Reekie lodged a direct privacy complaint about the 9 August broadcast with the Authority under section 8(1A) of the Broadcasting Act 1989. He repeated the substance of his first privacy complaint, and alleged that he had finished serving the sentence which was shown in the film in 1998, so the fact of that particular conviction had become private again and the programme accordingly breached his privacy.

[7]   Mr Reekie also made a formal complaint to TVNZ alleging that the 9 August programme breached Standards 4 (balance), 5 (accuracy), 6 (fairness), 7 (programme classification) and 8 (programme information). He repeated the arguments raised in his complaint about the 8 February broadcast. He also argued that the programme discriminated against him “through the telling of these lies [about him]”.

Standards

[8]   The standards in the Free-to-Air Television Code of Broadcasting Practice were revised and changed effective from 1 July 2009. Accordingly, Standards 3, 4, 5, 6, 7 and 8 are relevant to the determination of the complaint. These provide:

Standard 3 Privacy

Broadcasters should maintain standards consistent with the privacy of the individual.

Standard 4 Controversial Issues – Viewpoints

When discussing controversial issues of public importance in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

• is accurate in relation to all material points of fact; and/or
• does not mislead.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Standard 7 Discrimination and Denigration

Broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.

Standard 8 Responsible Programming

Broadcasters should ensure programmes:

• are appropriately classified;
• display programme classification information;
• adhere to timebands in accordance with Appendix 1;
• are not presented in such a way as to cause panic, or unwarranted alarm or undue distress; and
• do not deceive or disadvantage the viewer.

Broadcaster's Response to the Complainant

[9]   TVNZ contended that it had already fulfilled its obligation under section 6 of the Broadcasting Act 1989 when it considered Mr Reekie’s first complaint, as the 9 August programme was identical to the 8 February broadcast apart from one sentence in the final caption.

[10]   To the extent that it did have any obligation to consider the complaint, the broadcaster declined to determine the complaints under Standards 4 and 5 because those standards apply only to news, current affairs and factual programmes and Until Proven Innocent was a drama.

[11]   With regard to fairness, TVNZ maintained that the focus of the programme was David Dougherty’s story and his fight to prove his innocence. It considered that the brief references to Mr Reekie in the programme “amount to dramatic licence by the production company” and that “viewers would understand and appreciate this in the context of a drama”. It declined to uphold the Standard 6 complaint.

[12]   Looking at Standard 8, TVNZ was satisfied that the programme was correctly classified Adults Only. It noted that the programme was broadcast in TV One’s Sunday Theatre timeslot and that pre-publicity material identified the programme as a drama. It concluded that viewers would have understood that the programme was a drama and were not deceived or disadvantaged. It did not uphold the Standard 8 complaint.

Referral of Standards Complaint to the Authority

[13]   Dissatisfied with the broadcaster’s response, Mr Reekie referred his complaint under Standards 4, 5, 6, 7 and 8 about the 9 August broadcast to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[14]   Following the release of the High Court judgment upholding the Authority’s decision on his first complaint, Mr Reekie made submissions as to why the Judge’s decision was incorrect.

Broadcaster’s Response to the Authority

[15]   TVNZ emphasised that the 9 August programme was “in all material points the same as the original”, except for a change to the final caption which was made at Mr Reekie’s request and “was favourable to him”. The caption was altered to say that Mr Reekie was arrested “after attempting to abduct a third [woman]” rather than “while attempting to abduct a third”.

[16]   The broadcaster noted that under section 19 of the Broadcasting Act 1989, the decision of the High Court was final. It considered that Mr Reekie was “trying to circumvent the finality of that process by making this further complaint in respect of the re-broadcast of the same programme” and noted that his submissions largely focused on the Judge’s decision which could not be challenged.

[17]   TVNZ therefore submitted that the Authority should decline to determine this complaint on the basis that it was vexatious, or that it was appropriate in all the circumstances.

Complainant’s Final Comment

[18]   Mr Reekie argued that the Judge had left open a number of issues to be revisited by the Authority. He considered that “there is nothing vexatious about a complainant seeking fairness, justice and a full and proper determination of all his issues”. He alleged that “Justice White points out that there are still issues surrounding this film/complaint that have not been addressed, should be addressed by the Authority and in that respect, it is not finalised.”

[19]   Mr Reekie concluded that “not only is it appropriate that the Authority determines this new complaint... it has a clear cut duty/responsibility to do so and... it should not leave such important issues unresolved.”

Authority’s Request for Further Submissions from the Broadcaster

[20]   The Authority invited TVNZ to comment on Mr Reekie’s argument that the depiction of his imprisonment in 1993 breached his privacy. TVNZ noted that the Judge had considered this point and maintained that “there is no prospect that serious offending of this nature could be considered to be private, for the reasons set out by His Honour”.

Authority's Determination

[21]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 3 (privacy)

[22]   In our view, the only matter raised by Mr Reekie under Standard 3 which was not previously dealt with in relation to the first broadcast is his argument that the programme’s depiction of his imprisonment in 1993 breached his privacy because “those matters were 16 years old” and “I finished serving my sentence for that crime in 1998”.

[23]   The Authority previously determined that Mr Reekie’s 2003 convictions were not public facts that had become private again. This was upheld on appeal in the High Court. We note that Justice White went on to say:

...the same decision would have been reached in respect of the public nature of Mr Reekie’s 1993 convictions. Those convictions also related to serious offences and were not protected by the Criminal Records (Clean Slate) Act 2004... Furthermore, the 1993 convictions were back in the public arena as a direct result of Mr Reekie’s 2003 convictions.³

[24]   We agree completely with Justice White. In our view, Mr Reekie could not reasonably expect his convictions or imprisonment at that time to become private given the serious nature of the offences and his later convictions and imprisonment. Accordingly, we decline to uphold the complaint that the depiction of Mr Reekie in prison in the early 1990s breached his privacy.

[25]   With respect to the rest of Mr Reekie’s privacy complaint, which essentially repeated his original complaint relating to the 8 February broadcast, the Authority has already determined those points and its decision was upheld in the High Court. We therefore consider that it is appropriate in the circumstances to decline to determine the remainder of the Standard 3 complaint under section 11(b) of the Broadcasting Act 1989.

Standard 7 (discrimination and denigration)

[26]   Mr Reekie argued under fairness that “I feel I am being discriminated against through the telling of these lies [in the programme]”. Prior to 1 July 2009, discrimination was dealt with under guideline 6g to Standard 6 (fairness). It is now dealt with separately under Standard 7.

[27]   Standard 7 applies only to sections of the community, not individuals. Accordingly, we find that the standard does not apply in the circumstances and we decline to uphold this part of the complaint.

Standard 4 (controversial issues), Standard 5 (accuracy), Standard 6 (fairness),

Standard 8 (responsible programming)

[8]   Mr Reekie did not make any new arguments under these standards in his formal complaint that were not already determined in relation to the 8 February broadcast. The Authority’s Decision No. 2009-026 in relation to that broadcast was upheld in the High Court.

[9]   Accordingly, we find it appropriate in the circumstances to decline to determine these aspects of the complaint under section 11(b) of the Broadcasting Act 1989.

For the above reasons the Authority declines to uphold the complaint that Standards 3 and 7 of the Free-to-Air Television Code of Broadcasting Practice were breached by the broadcast of Until Proven Innocent on 9 August 2009.

The Authority declines to determine the complaint that Standards 4, 5, 6, and 8 of the Free-to-Air Television Code of Broadcasting Practice were breached.

Signed for and on behalf of the Authority

Peter Radich
Chair
6 July 2010

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1.           Nicholas Reekie’s direct privacy complaint – 2 September 2009

2.          Mr Reekie’s formal complaint – 2 September 2009

3.          Letter from Mr Reekie to the Authority – 19 October 2009

4.          TVNZ’s decision on the complaint – 29 October 2009

5.          Mr Reekie’s referral to the Authority – 9 November 2009

6.          Further submissions from Mr Reekie – 10 May 2010

7.          TVNZ’s response to the Authority – 12 May 2010

8.          Mr Reekie’s final comment – 24 May 2010

9.          Further comments from TVNZ – 1 June 2010

¹This caption was altered after the original broadcast which stated, “He was caught while attempting to abduct a third.”

²Reekie and TVNZ, Decision No. 2009-026; Reekie v TVNZ, High Court at Auckland, CIV 2009-404-003728 PDF (255.2 KB), 8 February 2010 

³Reekie v TVNZ, High Court at Auckland, CIV 2009-404-003728 PDF (255.2 KB), 8 February 2010 at paragraph [55]